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Freedom of Information Act
Insights Top Censored story of 2005: Bush Administration Moves to Eliminate Open Government :Source: Faculty Evaluator: Yvonne Clarke, MA, Student Researcher: Jessica Froiland * Common Dreams, September 14, 2004. Press release. Title: “New Report Details Bush Administration Secrecy” Author: Karen Lightfoot http://www.commondreams.org/news2004/0914-05.htm * http://www.democrats.reform.house.gov/story.asp?ID=692&Issue=Open+Government A number of alarming reductions to government access and accountability have been building. Small and systematic changes have been made to existing laws and with executive orders to lock citizens out of our government. * The Bush Administration has an obsession with secrecy. Changes in practices and laws reduce public and congressional scrutiny of its activities. The cumulative effect is an unprecedented assault on the laws that make our government open and accountable. * The Freedom of Information Act (FOIA) gives citizens the ability to file a request for specific information from a government agency and provides recourse in federal court if that agency fails to comply with FOIA requirements. Over the last two decades, beginning with Reagan, this law has become increasingly diluted and circumvented by each succeeding administration. Under the Bush Administration, agencies make extensive and arbitrary use of FOIA exemptions (such as those for classified information, privileged attorney-client documents and certain information compiled for law enforcement purposes) often inappropriately or with inadequate justification. Recent evidence shows agencies making frivolous (and sometimes ludicrous) exemption claims, abusing the deliberative process privilege, abusing the law enforcement exemption, and withholding data on telephone service outages. Quite commonly, the Bush Administration simply fails to respond to FOIA requests at all. Whether this is simply an inordinate delay or an unstated final refusal to respond to the request, the requesting party is never told. But the effect is the same: the public is denied access to the information. The Bush Administration also engages in an aggressive policy of questioning, challenging and denying FOIA requesters’ eligibility for fee waivers, using a variety of tactics. Measures include narrowing the definition of “representative of news media,” claiming information would not contribute to public understanding. Ten years ago, federal agencies were required to release documents through FOIA––even if technical grounds for refusal existed––unless “foreseeable harm” would result from doing so. But, according to the Waxman report, an October 2001 memo by Attorney General John Ashcroft instructs and encourages agencies to withhold information if there are any technical grounds for withholding it under FOIA. In 2003, the Bush Administration won a new legislative exemption from FOIA for all National Security Agency “operational files.” The Administration’s main rationale for this new exemption is that conducting FOIA searches diverts resources from the agency’s mission. Of course, this rationale could apply to every agency. As NSA has operated subject to FOIA for decades, it is not clear why the agency now needs this exemption. The Presidential Records Act ensures that after a president leaves office, the public will have full access to White House documents used to develop public policy. Under the law and an executive order by Ronald Reagan, the presumption has been that most documents would be released. However, President Bush issued an executive order that establishes a process that generally blocks the release of presidential papers. Changes to Laws that Restrict Public Access to Federal Records The Bush Administration has dramatically increased the volume of government information concealed from public view. In a March 2003 executive order, President Bush expanded the use of the national security classification. The order eliminated the presumption of disclosure, postponed or avoided automatic declassification, protected foreign government information, reclassified some information, weakened the panel that decides to exempt documents from declassification and adjudicates classification challenges, and exempted vice presidential records from mandatory declassification review. The Bush Administration has also obtained unprecedented authority to conduct government operations in secret, with little or no judicial oversight. Under expanded law enforcement authority in the Patriot Act, the Justice Department can more easily use secret orders to obtain library and other private records, obtain “sneak-and-peek” warrants to conduct secret searches, and conduct secret wiretaps. In addition, the Bush Administration has used novel legal interpretations to expand its authority to detain, try, and deport individuals in secret. Since the September 11, 2001 attacks, the Bush Administration has asserted unprecedented authority to detain anyone whom the executive branch labels an “enemy combatant” indefinitely and secretly. It has authorized military trials that can be closed not only to the public but also to the defendants and their own attorneys. And the Administration has authorized procedures for the secret detention and deportation of aliens residing in the United States. Congressional Access to Information Compared to previous administrations, the Bush Administration has operated with remarkably little congressional oversight. This is partially attributable to the alignment of the parties. The Republican majorities in the House and the Senate have refrained from investigating allegations of misconduct by the White House. Another major factor has been the Administration’s resistance to oversight. The Bush Administration has consistently refused to provide to members of Congress, the Government Accountability Office, and congressional commissions the information necessary for meaningful investigation and review of the Administration’s activities. For example, the Administration has contested in court the power of the Government Accountability Office to conduct independent investigations and has refused to comply with the rule that allows members of the House Government Reform Committee to obtain information from the executive branch, forcing the members to go to court to enforce their rights under the law. It has also ignored and rebuffed numerous requests for information made by members of Congress attempting to exercise their oversight responsibilities with respect to executive branch activities, and repeatedly withheld information from the investigative commission established by Congress to investigate the September 11 attacks. Update Rep. Waxman’s companion bill, HR 5073 IH, the Restore Open Government Act of 2004, was not heard by Congress before the Winter Recess in December, and the bill was not reintroduced in the Opening Session in January 2005. However, on February 16, after the commencement of the 109th Congress, John Cornyn (R-Tex.) and Patrick Leahy (D-Vt.) introduced a bill entitled the Openness Promotes Effectiveness in our National Government Act of 2005, S. 394 (the Cornyn-Leahy bill), which according to their joint statement “is designed to strengthen laws governing access to government information, particularly the Freedom of Information Act.” On the same day, an identical bill, H.R. 867, was introduced in the House of Representatives by Rep. Lamar Smith (R-Tex.).1 For more information on Rep. Waxman’s legislation and work on open government, site, please visit http://www.democrats.reform.house.gov NOTE 1. St. Petersburg Times (Florida), February 18, 2005, “Improving access to information.” #8 Censored Story of 2006: Pentagon Exempt from Freedom of Information Act : Sources: http://www.projectcensored.org/censored_2007/index.htm Community Evaluator: Tim Ogburn. Student Researcher: Rachelle Cooper and Brian Murphy * New Standard, May 6, 2005, Title: “Pentagon Seeks Greater Immunity from Freedom of Information”, Author: Michelle Chen * Newspaper Association of America website, posted December 2005, Title: “FOIA Exemption Granted to Federal Agency” The Department of Defense has been granted exemption from the Freedom of Information Act (FOIA). In December 2005, Congress passed the 2006 Defense Authorization Act which renders Defense Intelligence Agency (DIA) “operational files” fully immune to FOIA requests, the main mechanism by which watchdog groups, journalists and individuals can access federal documents. Of particular concern to critics of the Defense Authorization Act is the DIA’s new right to thwart access to files that may reveal human rights violations tied to ongoing “counterterrorism” efforts. The rule could, for instance, frustrate the work of the American Civil Liberties Union (ACLU) and other organizations that have relied on FOIA to uncover more than 30,000 documents on the U.S. military’s involvement in the torture and mistreatment of foreign detainees in Afghanistan, Guantanamo Bay, and Iraq—including the Abu Ghraib scandal. Several key documents that have surfaced in the advocacy organization’s expansive research originate from DIA files, including a 2004 memorandum containing evidence that U.S. military interrogators brutalized detainees in Baghdad, as well as a report describing the abuse of Iraqi detainees as violations of international human rights law. According to Jameel Jaffer, an ACLU attorney involved in the ongoing torture investigations, “If the Defense Intelligence Agency can rely on exception or exemption from the FOIA, then documents such as those that we obtained this last time around will not become public at all.” The end result of such an exemption, he told The New Standard, is that “abuse is much more likely to take place, because there’s not public oversight of Defense Intelligence Agency activity.” Jaffer added that because the DIA conducts investigations relating to other national security-related agencies, documents covered by the exemption could contain critical evidence of how other parts of the military operate as well. he ACLU recently battled the FOIA exemption rule of the CIA in a lawsuit over the agency’s attempt to withhold information concerning alleged abuse of Iraqi detainees. The CIA’s defense centered on the invocation of FOIA exemption, and although a federal judge ultimately overrode the rule, Jaffer cited the case as evidence of “exemption creep”—the gradual stretching of the law to further shield federal agencies from public scrutiny. According to language in the Defense Authorization Act, an operational file can be any information related to “the conduct of foreign intelligence or counterintelligence operations or intelligence or security liaison arrangements or information exchanges with foreign governments or their intelligence or security services.” Critics warn that such vague bureaucratic language is a green light for the DIA to thwart a wide array of legitimate information requests without proper justification. Steven Aftergood, director of the research organization Project on Government Secrecy, warns, “If it falls in the category of ‘operational files,’ it’s over before it begins.” Thomas Blanton, director of the National Security Archive, adds, “These exemptions create a black hole into which the bureaucracy can drive just about any kind of information it wants to. And you can bet that Guantánamo, Abu Ghraib-style information is what DIA and others would want to hide.” The Newspaper Association of America reports that, due to lobbying efforts of the Sunshine in Government Initiative and other open government advocates, congressional negotiators imposed an unprecedented two-year “sunset” date on the Pentagon’s FOIA exemption, ending in December 2007. Update by Michelle Chen: The Defense Intelligence Agency, the intelligence arm of the Department of Defense, has been a source for critical information on the Pentagon's foreign operations as well as the DIA's observations of the conduct of other branches of the military. Its request for immunity from the Freedom of Information Act last year was not the first attempt to shield its data from members of the public, but it did come at a time that the governent's anti-terror fervor was beginning to crest. Open-government groups warn that such an exemption from FOIA requests, which the Central Intelligene Agency already enjoys, would close off a major channel for information in a government bureaucracy already riddled with both formal and informal barriers of secrecy. The Pentagon's request alarmed groups like the ACLU, which has relied heavily on such data to build cases regarding torture and abuse of detainees in Iraq. (http://www.aclu.org/torturefoia/released/042005/). Since the article was published, the language proposed for the Defense Department budget for FY 2006 was adopted. (The public print of the bill can be read at the GPO website here, buried on page 472: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_bills&docid=f:s1042pp.txt.pdf. The bill specifically refers to the immunity of "operational files," though this is somewhat ambiguously defined. Another development in this issue area over the past year is that secrecy and intelligence gathering have become intense domestic political issues. As a result, heightened public attention to the gradual rollback on open-government laws is beginning to stir some congressional action in the form of hearings and investigative reports, not just related to classified information per se but also the new quasi-classified categories that have cropped up since 9/11 (http://www.fas.org/sgp/congress/2006/index.html). Earlier this year, the Pentagon initiatied a department-wide review of FOIA practices, though it is unlear whether this internal evaluation will lead to actual changes in how information is disclosed or withheld from public purview. (http://www.defenselink.mil/pubs/foi/DoD_FOIA_Review.pdf). Links for more info * The Project on Government Secrecy, a watchdog group run by the American Federation of Scientists: http://www.fas.org/sgp/congress/2006/index.html * The National Security Archives at George Washington University, which has an extensive collection of FOIA documents and has issued numerous reports and studies on government secrecy and FOIA policies: http://www.gwu.edu/~nsarchiv/nsa/foia.html Links * Open government * Open government-plank